dismissed EB-1A Case: Arts / Performing Arts

(b)(6)
DATE: FEB 1 1 2015 Office: TEXAS SERVICE CENTER 
IN RE: Petiti oner: 
Beneficiary: 
U.S. Department ofHomeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b)(l)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1153(b)(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion 
to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) within 33 
days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms 
for the latest information on fee, filing location, and other requirements. See also 8 C.F.R. § 103.5. Do not 
file a motion directly with the AAO. 
�� 
Ron Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
(b)(6)
NON-PRECEDENT DECISION 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be 
dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" in the arts, as a singer and 
performer, pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(l)(A), which makes visas available to aliens who can demonstrate their extraordinary ability 
through sustained national or international acclaim and whose achievements have been recognized in 
their field through extensive documentation. The director determined that while the petitioner had 
submitted the initial required evidence by meeting at least three of the ten regulatory criteria at 8 C.F.R 
§ 204.5(h)(3), the totality of the evidence was insufficient to establish eligibility. 
On appeal, the petitioner asserts that he meets the criteria under 8 C.P.R. § 204.5(h)(3)(i), (iii), (iv) and 
(vii). For the reasons discussed below, the petitioner has not established his eligibility for the 
exclusive classification sought. Specifically, the petitioner has not submitted qualifying evidence of a 
one-time achievement pursuant to 8 C.P.R. § 204.5(h)(3), or evidence that satisfies at least three of the 
ten regulatory criteria set forth in the regulations at 8 C.P.R. § 204.5(h)(3)(i)-(x). In addition, we agree 
with the director that, in the final merits determination, the petitioner has not shown that he is one of a 
small percentage who have risen to the very top of the field or that he has sustained national or 
international acclaim. See 8 C.F.R. § 204.5(h)(2), (3). Accordingly, we will dismiss the petitioner's 
appeal. 
I. THELAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. --Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if -
(i) the alien has extraordinary ability in the sciences, arts, education, 
business, or athletics which has been demonstrated by sustained 
national or international acclaim and whose achievements have 
been recognized in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue work in the 
area of extraordinary ability, and 
(iii) the alien's entry into the United States will substantially benefit 
prospectively the United States. 
(b)(6)
NON-PRECEDENT DECISION 
Page 3 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101st Cong., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. Id .; 8 C.P.R. § 204.5(h)(2). 
The regulation at 8 C.P.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petitiOner can 
demonstrate the alien's sustained acclaim and the recognition of the alien's achievements in the field 
through evidence of aone-time achievement (that is, a major, internationally recognized award). If the 
petitioner does not submit this evidence, then a petitioner must submit sufficient qualifying evidence 
that meets at least three of the ten categories of evidence listed at 8 C.P.R. § 204.5(h)(3)(i)-(x). 
The submission of evidence relating to at least three criteria, however, does not, in and of itself, 
establish eligibility for this classification. See Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010) 
(discussing a two-part review where the evidence is first counted and then, if satisfying the required 
number of criteria, considered in the context of a final merits determination); see also Rijal v. USCIS, 
772 F. Supp. 2d 1339 (W.D. Wash. 2011) (affirming USCIS' proper application of Kazarian), aff'd, 
683 F.3d. 1030 (9th Cir. 2012); Visinscaia v. Beers, 4 F. Supp. 3d 126, 131-32 (D.D.C. 2013) (finding 
that USCIS appropriately applied the two-step review); Matter of Chawathe, 25 I&N Dec. 369, 376 
(AAO 201 0) (holding that the "truth is to be determined not by the quantity of evidence alone but by 
its quality" and that USCIS examines "each piece of evidence for relevance, probative value, and 
credibility, both individually and within the context of the totality of the evidence, to determine 
whether the fact to be proven is probably true"). 
II. ANALYSIS 
A. Prior 0-1 Visa Petitions 
While USCIS has approved at least one 0-1 nonimmigrant visa petition filed on behalf of the 
petitioner, the prior approval does not preclude users from denying an immigrant visa petition based 
on a different, if similarly phrased, standard. The regulatory standard and requirements for an immigrant 
and nonimmigrant alien of extraordinary ability in the arts are different. The regulation at 
8 C.P.R.§ 214.2(o)(3)(ii) defines extraordinary ability in the arts (including the performing arts) as simply 
"distinction," which is further defined as follows: 
Distinction means a high level of achievement in the field of arts evidenced by a degree of 
skill and recognition substantially above that ordinarily encountered to the extent that a 
person described as prominent is renowned, leading, or well-known in the field of arts. 
The regulation relating to the immigrant classification, 8 C.P.R. § 204.5(h)(2), however, defines 
extraordinary ability in any field as "a level of expertise indicating that the individual is one of that small 
percentage who have risen to the very top of the field of endeavor." While the ten immigrant criteria set 
forth in the regulation at 8 C.P.R. § 204.5(h)(3) appear in the nonimmigrant regulation, 
(b)(6)
NON-PRECEDE NT DECISION 
Page 4 
8 C.F.R. § 214.2(o)(3)(iii), they refer only to aliens who seek extraordinary ability in the fields of science, 
education, business or athletics. Separate criteria for nonimmigrant aliens of extraordinary ability in the 
arts are set forth in the regulation at 8 C.F.R. § 214.2(o)(3)(iv). The distinction between these fields and 
the arts, which appears in the regulation at 8 C.P.R.§ 214(o), does not appear in the regulation at 8 C.F.R. 
§ 204.5(h). As such, the petitioner's approval for a nonimmigrant visa under the lesser standard of 
"distinction" is not evidence of his eligibility for the similarly titled immigrant visa. 
Moreover, it must be noted that many I-140 immigrant petitions are denied after USCIS approves prior 
nonimmigrant petitions. See, e.g., Q Data Consulting, In c. v. INS, 293 F. Supp. 2d 25 (D.D.C. 2003); 
IKEA US v. United States Dep 't of Justice, 48 F. Supp. 2d 22 (D.D.C. 1999); Fedin Bros. Co. Ltd. v. 
Sava, 724 F. Supp. 1103 (E.D.N.Y. 1989). We are not required to approve applications or petitions 
where eligibility has not been demonstrated, merely because of prior approvals that may have been 
erroneous. See, e.g., Matter of Church Scientology In t'l, 19 I&N Dec. 593, 597 (Comm'r 1988). We 
need not treat acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 
1084, 1090 (6th Cir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, our authority over the service centers is comparable to the relationship between a court of 
appeals and a district court. Even if a service center director had approved the nonimmigrant petitions, 
we would not be bound to follow the contradictory decision of a service center as the law is clear that 
an agency is not bound to follow an earlier determination as to a visa applicant where that initial 
determination was based on a misapplication of the law. Glara Fashion, Inc. v. Holder, 11 CIV. 889 
PAE, 2012 WL 352309 *7 (S.D.N.Y. Feb. 3, 2012); Royal Siam v. Chertoff, 484 F.3d 139, 148 (1st 
Cir. 2007); Tapis Int'l v. INS, 94 F. Supp. 2d 172, 177 (D. Mass. 2000)) (Dkt.lO); Louisiana 
Philharmonic Or chestra v. INS, 44 F. Supp. 2d 800, 803 (E.D.La. 1999), aff'd, 248 F.3d 1139 (5th Cir. 
2001), cert. denied, 534 U.S. 819 (2001). 
B. Evidentiary Criteria1 
Under the regulation at 8 C.F.R. § 204.5(h)(3), the petitioner can establish his sustained national or 
international acclaim and that his achievements have been recognized in the field of endeavor by 
presenting evidence of his receipt of a one-time achievement that is a major, internationally recognized 
award. In this case, the petitioner has not asserted or shown through his evidence that he is the 
recipient of a major, internationally recognized award, at a level similar to that of the Nobel Prize. As 
such, to meet the basic eligibility requirements, the petitioner must present at least three of the ten 
types of evidence under the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x). 
Documentation of the alien's receipt of lesser nationally or internationally recognized prizes or 
awards for excellence in the field of endeavor. 8 C.F.R. § 204.5(h)(3)(i). 
On appeal, the petitioner asserts that his is a nationally or 
internationally recognized prize or award for excellence in the field. The evidence in the record does 
1 We have reviewed all of the evidence the petitioner has submitted and will address those criteria the petitioner 
claims to meet or for which the petitioner has submitted relevant and probative evidence. 
(b)(6)
NON-PRECEDENT DECISION 
PageS 
not support this assertion. The petitioner has not shown that he meets this criterion for the following 
reasons. 
First, the petitioner has not shown that tht is nationally or 
internationally recognized. According to an undated letter from 
which the petitioner filed on appeal, the petitioner won the 
from a pool of approximately 50,000 individuals who auditioned for the show. 
The letter states that approximately 10 percent of those who auditioned were from countries other than 
the United States. At issue here is not whether the competition is open to performers from different 
parts of the world. At issue is whether the award is recognized either nationally or internationally. As 
evidence of the award's recognition and reputation, the petitioner has submitted evidence from the 
the organization that issued the award, and from individuals who have worked with 
the petitioner. Such self-promotional evidence has minimal evidentiary value. See Braga v. Poulos, 
No. CV 06-5105 SJO 10 (C.D. Cal. July 6, 2007), aff'd, 317 F. App'x 680 (9th Cir. 2009) (concluding 
that we did not have to rely on the promotional assertions on the cover of a magazine as to the 
magazine's status as major media). The petitioner has not supported the self-promotional evidence 
with more independent evidence, such as, but not limited to, independent journalistic coverage of his 
receipt of the award in nationally or internationally circulated publications. 
Moreover, the evidence shows that the petitioner's award is given to amateur performers weekly. The 
issuance of the award on a weekly basis and the limited pool of amateurs are factors not commensurate 
with an award that has national or international recognition. The record includes an award certificate 
signed by the producer of In her December 16, 2009 letter, " Chief Executive Officer (CEO) of the petitioner's 
employer, states that is a weekly competition for "aspiring artists and performers" who 
hope that "the magic of the hallowed stage and the approval of the infamous audience will launch their 
careers in the entertainment world." According to Vice President and 
Associate General Counsel, Business and Legal Affairs, the petitioner appeared on an 
episode of and won an award, for which the petitioner received $5,000. The petitioner 
has not shown that his award, given only to amateur performers on a weekly basis, is either nationally 
or internationally recognized. In addition, although the petitioner and his employer assert that his 
performance at the competition was televised, the petitioner has not submitted evidence, such as a 
letter from the competition organizer or a television station, in support of the assertion. Going on 
record without supporting documentary evidence is not sufficient for the purposes of meeting the 
burden of proof in these proceedings. Matter of Soffici, 22 I&N Dec. 158, 165 (Assoc. Comm'r 1998) 
(citing Matter ofT reasure Craft of California, 14 I&N Dec. 190 (Reg'l Comm'r 1972)). 
Accordingly, the petitioner has not presented documentation of his receipt of lesser nationally or 
internationally recognized prizes or awards for excellence in the field. The petitioner has not met this 
criterion. See 8 C.P.R. § 204.5(h)(3)(i). 
2 The record contains several letters from this individual, two of which include the spelling " One of the letters 
with this alternate spelling contains that spelling both in the text of the letter and the signature line. 
(b)(6)
NON-PRECEDE N T DECISI ON 
Page 6 
Published material about the alien in professional or major trade publications or other major 
media, relating to the alien's work in the field for which classification is sought. Such evidence 
shall include the title, date, and author of the material, and any necessary translation. 8 C.P.R. 
§ 204.5(h)(3)(iii). 
. 
The director concluded that the petitioner met this criterion. The evidence in the record supports this 
conclusion. The petitioner has submitted an article entitled ' ' published in the 
Entertainment Section of which is about the petitioner's experience competing in the television 
show The petitioner has shown that is a major media publication. According to 
official promotional materials, reaches 1.8 million readers in several markets 
daily. Accordingly, the petitioner has provided published material about him in professional or major 
trade publications or other major media, relating to his work in the field. The petitioner has met this 
criterion. See 8 C.F.R. § 204.5(h)(3)(iii). · 
Evidence of the alien's participation, either individually or on a panel, as a judge of the work of 
others in the same or an allied field of specification for which classification is sought. 8 C.F.R. 
§ 204.5(h)(3)(iv). 
The director concluded that the petitioner met this criterion. The evidence in the record supports this 
conclusion. Specifically, the record includes an undated letter from Ms. stating that the 
petitioner "has been asked to join a panel and be a judge of the work of others to help select talent for 
[the] roster of performers ... at ' The letter states that "[a]s a result of [the 
petitioner's] contribution on [the] panel of judges, 1 has] added 3 new singers and 
performers to [the] team and continue[s] to work with them till this date." On appeal, the petitioner 
submits another undated letter from Ms. , stating that "[d]ue to [the petitioner's] excellence as 
a vocal performer, invited him to join [its] panel of judges. He accepted [the] 
invitation and gladly participated. He did exceptionally well, made accurate decisions and analogies." 
Accordingly, the petitioner has submitted evidence of his participation, either individually or on a 
panel, as a judge of the work of others in the same or an allied field of specification for which 
classification is sought. The petitioner meets this criterion. See 8 C.P.R. § 204.5(h)(3)(iv). 
Evidence of the display of the alien's work in the field at artistic exhibitions or showcases. 
8 C.P.R. § 204.5(h)(3)(vii). 
The director concluded that the petitioner met this criterion. The evidence in the record does not 
support this finding. We conduct appellate review on a de novo basis. Soltane, 381 F.3d at 145-46. 
We may deny an application or petition that fails to comply with the technical requirements of the law 
even if the servi�e �enter rloes not identify all of the grounds for denial in the initial decision. 
See 229 F. Supp. 2d at 1043. 
The evidence in the record shows that the petitioner has performed on , at 
events, a basketball game in and as a member of the band 
Some of these performances have been recorded and posted on the internet. This criterion, 
(b)(6)
--------------
NON-PRECEDE N T DECI SION 
Page 7 
however, is limited to the visual arts. The interpretation that this criterion is limited to the visual arts is 
longstanding and has been upheld by a federal district court. See Negro-Plumpe v. Okin, 2:07-CV-
820-ECR-RJJ at 7 (D. Nev. Sept. 8, 2008) (upholding an interpretation that performances by a 
performing artist do not fall under 8 C.P.R. § 204.5(h)(3)(vii)). As the petitioner is not a visual artist 
and has not created tangible pieces of art that were on display at exhibitions or showcases, the 
petitioner has not submitted qualifying evidence that meets the plain language requirements of the 
criterion. 
Accordingly, the petitioner has not provided evidence of the display of his work in the field at artistic 
exhibitions or showcases. The petitioner has not met this criterion. See 8 C.P.R. § 204.5(h)(3)(vii). 
C. Final Merits Determination 
The petitioner has met only two criteria, the published material in major media criterion and the 
participation as a judge of the work of others criterion. 8 C.F.R § 204.5(h)(3)(iii), (iv). 
Notwithstanding this finding, in accordance with the Kazarian opinion and given that the director's 
sole basis of denial was a final merits determination, we will conduct a final merits determination. All 
the evidence in the record is considered in the context of whether or not the petitioner has 
demonstrated: (1) his "level of expertise indicating that [he] is one of [a] small percentage who have 
risen to the very top of the field of endeavor," and (2) that he "has sustained national or international 
acclaim and that his ... achievements have been recognized in the field of expertise." Section 
203(b)(l)(A) of the Act; 8 C.P.R. §§ 204.5(h)(2), (3); see also Kazarian, 596 P.3d at 1119-20. For the 
reasons discussed below, the petitioner has not made such a showing. Accordingly, the appeal must be 
dismissed. 
The evidence in the record shows that the petitioner is a working singer and performer who has won an 
amateur vocal competition. The evidence, however, is insufficient to show that he is one of a small 
percentage who have risen to the very top of the field or that he has sustained national or international 
acclaim. See 8 C.P.R. § 204.5(h)(2), (3). The record also includes evidence of the petitioner's active 
participation in the program. Although his participation shows his 
character, it does not establish his achievements or success as a singer and performer, a field in which 
he claims extraordinary ability. 
With regard to the prizes or awards for excellence criterion under the regulation at 8 C.P.R. 
§ 204.5(h)(3)(i), a criterion worded in the plural, we concluded that the Retitioner has not met this 
criterion. As discussed, the petitioner's is not a nationally or 
internationally recognized prize or award for excellence in the field. Only amateur performers may 
compete for this award and a winner is selected on weekly basis. The petitioner has not submitted any 
independent evidence, such as, but not limited to, independent journalistic coverage of his receipt of 
the award in nationally or internationally circulated publications, which might demonstrate the 
reputation or prestige of the award. 
With respect to the published material about the alien criterion under the regulation 8 C.P.R. 
§ 204.5(h)(3)(iii), and the judging criterion at 8 C.P.R § 204.5(h)(3)(iv), although the petitioner meets 
(b)(6)
NON-PRECEDE N T DECISI ON 
Page 8 
these criteria, he has not shown that this evidence is indicative of sustained national or international 
acclaim. See section 203(b)(1)(A) of the Act; 8 C.F.R. §§ 204.5(h)(2), (3); see also Kazarian, 
596 F.3d at 1119-20. The Kazarian court recognized that evidence satisfying a given criterion might 
not, in fact, be indicative of national or international acclaim and may be evaluated as such in the final 
merits determination. Most of the materials the petitioner has submitted in support of this criterion are 
not about the petitioner. Rather, they are promotional materials or event announcements for a band in 
which the petitioner is a member or events in which the petitioner was scheduled to perform. 
Moreover, videos of the petitioner's performances posted on social media websites not only do not 
meet this criterion, but they are not necessarily indicative of national or international acclaim because 
the videos can be updated by anyone who has internet access, including the petitioner, and the 
petitioner has not shown that the petitioner's performances have garnered unusually high viewership 
online. In addition, the petitioner has not shown that one article in Metro that discusses his experience 
on a television show is indicative of his sustained national or international acclaim. 
The petitioner submitted evidence that he participated as a judge of performers for his employer. The 
petitioner has not submitted evidence relating to how frequently he served as a judge for his employer, 
or evidence showing that he served as a judge for any other entities. As the petitioner's judging 
experience is limited in scope to his employer, a private company that provides entertainment for 
weddings, corporate events and charity galas, he has not shown that his judging experience is 
indicative of his national or international acclaim. 
With regard to the display at artistic exhibitions or showcases under 8 C.F.R. § 204.5(h)(3)(vii), we 
concluded that the petitioner has not met this criterion. See section 203(b)(1)(A) of the Act; 8 C.F.R. 
§§ 204.5(h)(2), (3); see also Kazarian, 596 F.3d at 1119-20; Negro-Plumpe, 2:07-CV-820-ECR-RJJ at 
7. Even if the petitioner has met this criterion, he has not shown his eligibility for the employment 
classification sought. The Kazarian court recognized that evidence satisfying a given criterion might 
not, in fact, be indicative of national or international acclaim and may be evaluated as such in the final 
merits determination. The petitioner has performed on the television show a weekly 
competition a basketball game in and 
as a member of the band Performing in events, however, is inherent to the petitioner's 
occupation as a singer and performer. The ability to secure employment in one's occupation is not 
indicative of national or international acclaim. The petitioner has not shown that the frequency of his 
performances or the venues where he has performed are indicative of his national or international 
acclaim in the field. In addition, the petitioner has not provided sufficient evidence showing that only 
musicians at the very top of the field may perform at the venues where he had performed. In fact, he 
performed at the as an amateur performer. As such, the petitioner has not shown that 
his performances are indicative of his national or international acclaim in the field of musical 
performance. 
Ultimately, the record does not support the petitioner's eligibility as an alien of extraordinary ability in 
the field. A single amateur award, a single article about the petitioner in qualifying media, judging 
responsibilities for his own employer and performances that are inherent to the occupation of 
performing artists do not amount, in the aggregate, to the type of extensive evidence of sustained 
acclaim required by the statute. Section 203(b)(1)(A)(i). Accordingly, even in the aggregate, the 
(b)(6)
NON-PRECEDE N T DECISIO N 
Page 9 
evidence does not distinguish the petitioner as one of the small percentage who have risen to the very top 
of the three field. 
III. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small 
percentage who have risen to the very top of his field of endeavor. 
A review of the evidence in the aggregate, however, does not establish that the petitioner has 
distinguished himself to such an extent that he may be said to have achieved sustained national or 
international acclaim or to be within the small percentage at the very top of the field. The evidence is 
not persuasive that the petitioner's achievements set him significantly above almost all others in his 
field at a national or international level. Therefore, the petitioner has not established his eligibility 
pursuant to section 203(b)(1)(A) of the Act and the petition may not be approved. 
The appeal will be dismissed for the above stated reasons, with each considered as an independent and 
alternate basis for the decision. In visa petition proceedings, it is the petitioner's burden to establish 
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of 
Oti ende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed.